United States Department of the Interior, Bureau of Reclamation, Pacific Northwest Region, Grand Coulee Power Office, Washington and Hungry Horse Field Office, Montana (Activity) and International Brotherhood of Electrical Workers, Local 77 (Union/Petitioner)
[ v62 p522 ]
62 FLRA No. 98
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
PACIFIC NORTHWEST REGION
GRAND COULEE POWER OFFICE
HUNGRY HORSE FIELD OFFICE
OF ELECTRICAL WORKERS
July 14, 2008
Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member
I. Statement of the Case
This case is before the Authority on an application for review filed by the Petitioner under § 2422.31 of the Authority's Regulations. [n1] The Agency did not file an opposition to the Union's application for review.
The Petitioner filed a petition seeking to accrete unit employees represented by the Petitioner at the Hungry Horse Field Office (HHFO) into an existing unit represented by the Columbia Basin Trades Council (CBTC) at the Grand Coulee Power Office (GCPO). [n2] The Agency claimed that the event triggering the Union's petition was not sufficient to justify the accretion. The Regional Director (RD) agreed and found that there was no basis for finding that the HHFO bargaining unit was no longer appropriate and dismissed the petition.
For the reasons that follow, we deny the Petitioner's application for review.
II. Background and RD's Decision
Both the HHFO and the GCPO are components of the Bureau of Reclamation. During the mid-1990's the HHFO was realigned under the GCPO and the Petitioner was subsequently certified as the exclusive representative of the Wage Board employees at the HHFO in 1996. [n3] That realignment did not result in the relocation of HHFO and GCPO employees, who are located approximately 350 miles apart at the Hungry Horse Dam and the Grand Coulee Dam, respectively. Although the realignment occurred prior to the 1996 certification, HHFO employees did not receive notifications of personnel actions (SF-50s) officially reflecting their realignment until 2005. In August 2007, the Petitioner filed a representation petition seeking to accrete unit employees represented by the Petitioner at the HHFO into the existing GCPO bargaining unit represented by the CBTC, of which the International Brotherhood of Electrical Workers is an affiliate.
The bargaining unit employees at both the HHFO and the GCPO perform maintenance work. The HHFO bargaining unit represented by the Petitioner includes approximately ten employees working in positions such as "Utilityman, Plant Mechanic, and Electrician." RD's Decision at 2. The CBTC represents approximately 174 employees at the GCPO, including those in positions [ v62 p523 ] such as "Electricians, Powerplant Operators, and Hydromechanics." Id. Since the realignment, unit employees' duties have remained essentially the same. However, as a result of the realignment, an additional layer of supervision has been added to the HHFO employees' chain of command at the GCPO.
Before the RD, the Petitioner claimed that the HHFO and GCPO employees are "functionally and administratively merged" due to the similarities of their positions and duties; details to one another's place of employment; and the centralized training, administrative, and organizational functions of the HHFO employees at GCPO. Id. The RD issued an Order to Show Cause ordering the Petitioner to explain: (1) how the 2005 realignment, alone, functionally and administratively integrated HHFO and GCPO employees; and, (2) why the HHFO had ceased to become an appropriate unit. Order to Show Cause at 1. In response to the first inquiry, the Petitioner stated that the change in the HHFO employees' chain of command was a direct result of the realignment. In response to the second inquiry, the Petitioner argued that accretion was the only appropriate way to equalize the pay among the HHFO and GCPO employees performing the same work, and that the petitioned-for unit would constitute an appropriate unit under the Statute.
Initially, the Agency argued that the realignment had already taken place when the HHFO unit was certified in 1996. The Agency also contended that the personnel actions issued to HHFO employees in 2005 merely memorialized the earlier realignment and was thus insufficient to support the petitioned-for accretion. Finally, the Agency claimed that the petitioned-for unit would not constitute an appropriate unit because GCPO employees are able to negotiate their pay, whereas HHFO employees are not able to do so.
B. RD's Decision
The RD stated that the Authority will not grant accretion in cases where employees seeking to be added to a larger unit have not been functionally or physically integrated into the larger unit. The RD further stated that there must be a "triggering change in agency operations . . . sufficient to render the existing unit no longer appropriate" for accretion principles to apply. RD's Decision at 5. According to the RD, if it is found that there was a functional integration of the two units and a triggering change rendering the existing unit inappropriate, then the next step would be to make a determination as to whether the petitioned-for unit would satisfy the appropriate unit criteria described in § 7112 of the Statute. [n4] Finally, the RD stated that the proposed unit did not have to be the only appropriate unit or the most appropriate unit, but merely an appropriate unit. Id. (citing AFGE, Local 2004, 47 FLRA 969 (1993)).
Using the above framework, the RD determined that the Union had not provided sufficient evidence to demonstrate that the realignment functionally integrated the "day-to-day operations" of the two facilities or that it administratively integrated HHFO and GCPO employees. Id. In so concluding, the RD found that there had been no change in the location, the function, or the duties of HHFO employees as a result of the realignment that occurred prior to the 1996 certification. Moreover, the RD found that no such changes had occurred as a result of the Agency's issuance of SF-50s to employees officially reflecting that realignment in 2005.
Additionally, noting that petitions requesting accretion are granted only where the evidence shows that the unit employees desiring accretion no longer constitute an appropriate separate bargaining unit on their own, the RD found that the Petitioner did not provide evidence demonstrating why the HHFO bargaining unit is no longer appropriate. "In the absence of a triggering `change in agency operations[,]'" the RD concluded that "there is no basis for finding the HHFO bargaining unit no longer appropriate." Id. at 6. Consequently, the RD found it unnecessary to make a determination as to whether the petitioned-for unit would satisfy the appropriate unit criteria set forth in the Statute since that unit had previously been certified and found appropriate. Therefore, the RD dismissed the petition.
IV. Petitioner's Application for Review
The Petitioner argues that the RD improperly required it to demonstrate that the current HHFO unit is no longer appropriate before considering whether accretion principles would apply. Instead, the Petitioner argues that the RD should have applied the appropriate unit criteria set forth in § 7112 of the Statute and analyzed whether the proposed unit was appropriate. The Petitioner contends that "the proper analysis is to first find that an accretion has occurred, [ v62 p524 ] which only then demonstrates that the accreted unit is no longer appropriate." Application for Review at 4 (emphasis in original) (citing Dep't of the Navy, Naval Hospital, Submarine Base, Bangor Clinic Bremerton, Washington, 15 FLRA 125, 128 (1984) (Navy)).
The Petitioner claims that the RD also mistakenly found that no triggering event had occurred when dismissing the petition. In this regard, the Petitioner argues that the Agency's "administrative realignment" of HHFO into GCPO in 2005 was a "triggering event" warranting accretion because it was not until then that the Agency "officially brought HHFO under the complete control of GCPO." Id. at 5-6.
The Petitioner further contends that the § 7112 criteria for determining whether a unit is appropriate are met. Finally, the Petitioner requests that the Authority grant its Application for Review and, at least, order a hearing "to resolve the precise nature of the Agency's admitted 2005 administrative realignment." Id. at 6.
V. The RD did not fail to apply established law.
Accretion involves the addition of a group of employees to an existing bargaining unit without an election based on a change in agency operations or organization. See United States Dep't of the Navy, Naval Air Warfare Command, Aircraft Div., Patuxent River, Md., 56 FLRA 1005, 1006 (2000) (Patuxent River). Because accretion precludes employee self-determination, the accretion doctrine is narrowly applied. See id. In order to find an accretion, the Authority considers whether there has been a "change in an agency's organization or operations affecting the appropriate unit criteria concerning an existing unit." Id. Accretion principles do not apply where there is no change in an agency's organization or operations affecting the appropriate unit criteria concerning an existing unit. See id. (citing NAGE/SEIU, Local 5000, 52 FLRA 1068, 1080 (1997) (NAGE)); see also, Fed. Trade Comm'n, 15 FLRA 247, 248 (1984) (accretion denied absent evidence of meaningful changes following certification where union agreed to exclude employees during certification process and then claimed the same employees had accreted to certified unit).
If there is a triggering change, then the Authority evaluates whether the petitioned-for unit is appropriate under § 7112(a) of the Statute, including consideration of whether the employees have become organizationally and operationally integrated into the existing unit. United States Dep't of the Army, United States Army Reserve Command, Fort McPherson, Ga., 57 FLRA 95, 96 (2001) (application for review granted and case remanded where the regional director failed to first address whether there had been any change in the agency's organization or operations before analyzing whether the petitioned-for unit was appropriate). Thus, in accretion cases, the Authority first considers whether there is a change in the Agency's organization or operations before evaluating whether the petitioned-for unit is appropriate. Id. In this regard, the Petitioner does not dispute that a "triggering event" is necessary to apply accretion principles, claiming that the event triggering the application of accretion principles is the Agency's issuance of the SF-50s to unit employees in 2005.
Here, in agreement with the RD, we find that no organizational or operational changes had occurred to alter the appropriateness of the existing unit because the realignment took place prior to the 1996 certification of the unit and the Agency's organization and operation had not changed since prior to that certification. In this regard, there were no changes in the location, the function, or the duties of the HHFO employees as a result of the realignment that preceded the 1996 certification. The issuance of the SF-50s does not constitute a change in agency operations because it merely documented the earlier realignment. See, e.g., NAGE, 52 FLRA at 1080 (an agreement between two unions to transfer representation from one unit to another is not sufficient to trigger application of accretion principles); cf. Patuxent River, 56 FLRA at 1006 (relocation of employees to same location as existing bargaining unit constituted a change in agency operations sufficient to warrant application of accretion principles and appropriate unit criteria under § 7112(a)).
Although the Petitioner cites Navy, 15 FLRA 125, in support of its argument that an administrative realignment can constitute a "triggering event," in that case, the RD found that "substantial organizational and operational changes [had] occurred." Id. at 127. Here, the RD specifically found that there were no changes in the location, the function, or the duties of the HHFO employees as a result of the administrative realignment and the Petitioner fails to provide any evidence that any such changes have occurred as a result of the realignment. As accretion principles do not apply where there is no change in an agency's organization or operations affecting the appropriate unit criteria concerning an existing unit, see id., the RD [ v62 p525 ] properly found that it was unnecessary to address whether the petitioned-for unit would be appropriate under § 7112(a) of the Statute. Accordingly, we find that the RD did not fail to apply established law and deny the Petitioner's application for review.
We deny the Petitioner's application for review. [n5]
Footnote # 1 for 62 FLRA No. 98 - Authority's Decision
(c) Review. The Authority may grant an application for review only when the application demonstrates that review is warranted on one or more of the following grounds:
(1) The decision raises an issue for which there is an absence of precedent;
(2) Established law or policy warrants reconsideration; or,
(3) There is a genuine issue over whether the Regional Director has:
(i) Failed to apply established law;
(ii) Committed a prejudicial procedural error;
(iii) Committed a clear and prejudicial error concerning a substantial factual matter.
Footnote # 2 for 62 FLRA No. 98 - Authority's Decision
Footnote # 3 for 62 FLRA No. 98 - Authority's Decision
Specifically, the unit includes all wage board employees, including temporary and term appointment wage board employees who are employed for 90 days or more of the HHFO, excluding all other nonprofessional employees; professional employees; management officials; supervisors; and employees described in 5 U.S.C 7112(b)(2)-(4) and (6)-(7). RD's Decisi